State of the Web: We gotta fight! For our right! … to Instagram our ballots

Did you know that you could be arrested, fined, kicked out of your polling place, or have your vote tossed in the trash for sharing a photo of your marked ballot on the Web?

This is the reality for most states in the U.S. Florida, Georgia, Kentucky, Nevada, North Carolina, Texas, and West Virginia all have laws on the books that explicitly forbid photography or video recording in polling places. Some states forbid the use of cellphones – which more often than not double as cameras. A majority of states have laws against the “public display” of a marked ballot – which means that Instagram photo you just posted to the Web may have broken state law. And other states just don’t make the rules clear, meaning you’d have to ask an already over-worked polling place volunteer first before snapping a pic or shooting video – and they might not know the answer.

Despite this, citizens are flooding the Web with photos of their ballots. A quick search for the #vote hashtag on Instagram at the time of this writing brings up nearly 600,000 photos, many of which likely violated the law – though many probably didn’t know they were doing so. On top of that, YouTube is pushing voters to record their voting experience, another potential no-no in the eyes of state laws.

In short, we might have a legal mess on our hands. So, how did we get in this muck? And, more importantly, can we get out?

To get a better sense of the issues at hand, I reached out to Andy Sellars, a First Amendment Fellow at Harvard University’s Berkman Center for Internet & Society and a staff attorney for its Digital Media Law Project, which has become the preeminent authority on laws governing the photographing and recording of ballots.

Protecting the vote

First, it’s important to remember that these laws are in place to protect citizens’ right to vote and the integrity of the voting process at large.

“The reason to have laws like this largely go to issues of voter intimidation and voter fraud,” says Sellars. “The concerns with voter intimidation would be you showing your ballot around the polling place, trying to use your vote as a way of influencing other voters how to vote, which obviously we [Americans] are pretty repugnant toward.”

In terms of voter fraud, Sellars says these laws are often in place to prevent vote-purchasing schemes, which could become more prevalent if voters are able to take a photo of their completed ballot as proof that they voted a particular way. “By preventing the disclosure of ballots, you’re preventing that from being able to happen,” says Sellars. “It reinforces the privacy of the vote … It also helps make sure that people aren’t interrupting other voters, or interfering with other voters, while in the polling place.”

Despite the protection anti-ballot-disclosure laws provide, Sellars notes that much of this legislation was concocted in an age before smartphones and social media.

“It’s important to keep in mind that these laws were probably written before we all walked around with cameras in our pockets,” says Sellars. “So the laws contemplate sort of a traditional era of voting, where you’d mark your ballot, you’d deposit your ballot, then you’d walk out, and there would be no physical record of that ballot traveling [outside the polling place].”

A dangerous culture of disclosure

Another argument for the presence of laws against ballot disclosure is that, by allowing everyone to photograph and share their ballots, it could create a so-called culture of disclosure, wherein people who do not wish to share their ballot with anyone feel pressure to do so. Sellars, however, doesn’t see this becoming too widespread a problem.

“There haven’t been that many elections where we have social media like we have today, so this election could be setting a new standard here,” says Sellars. “But, in general, we haven’t seen all that many people doing this. We see it happen for sure. And Instagram, I’m sure, will have many examples of this today. But I think that this idea of privacy around your vote isn’t escaping the next generation of youth that are voting for the first time today.”

“For the same reasons that you might be careful about photos you post on Facebook from a party this weekend, you might be careful about posting [your ballot],” Sellars adds. “It could jump back to bite you later.”

Shackled free speech

Of course, it is difficult not to notice the irony in laws that are meant to protect the most sacred form of free speech – your vote – which in turn prevent people from engaging in speech. Sellars says that “these sorts of disclosure laws face some serious Constitutional issues under the First Amendment,” but that the issues are most pertinent “in circumstances where [states are] prohibiting the disclosure of a ballot after the election has concluded.”

Furthermore, these laws do not prevent all forms of disclosure. As Jeff Hermes, director of the Digital Media Law Project, writes in a blog post on the First Amendment issues, “ballot disclosure laws are not complete bars to disclosure of a voter’s choice; voters are free to discuss their votes, albeit without proof in photographic form.”

Limited usefulness

Hermes goes on to argue that taking a picture of your marked ballot, or recording video at a polling location, only adds further protection against voter fraud and errors which seem to have become increasingly commonplace given the prevalence of e-voting machines.

“Voting is the fundamental method by which American citizens exercise their rights of self-governance, and it is essential to combat corruption of the process,” writes Hermes. “However, the extraordinary importance of voting also requires that we be free as citizens to discuss our experiences at the polls, including the people for whom we voted if we so wish. Otherwise, we begin to lose the protection against corruption and error that the First Amendment itself provides.”

The ability to record in your ballot has already proven its usefulness in this election, with a Reddit user capturing an e-voting machine switching his vote from Obama to Romney.

Sellars says that recording the conditions around your polling location may provide “very helpful evidence” as to whether the election is being conducted legally (as the video above proves); however, he says it’s not entirely clear that photographing your ballot is a particularly useful way to make elections more transparent.

“You’d have to have so many people disclosing their ballots in order to show a bad count in their precinct,” says Sellars. “You could come up with a circumstance where, you know, a precinct says, ‘We had 100 percent of respondents say this.’ And then you say, ‘No, here’s me voting the other way.’ But statistically, that’s very unlikely.”

Times a-changin’ – but not yet

In other words, there is a great debate to be had over whether or not disclosure laws are a positive or negative force on our democracy. Still, some states, like Maine, have already begun to update their disclosure laws. And Sellars says others may follow suit. Until then, however, your best bet is to “contact your precinct first,” says Sellars, before you snap an Instagram pic of your ballot. This is especially important due to the fact that many of these laws are so vague.

“Just because a state law doesn’t expressly prohibit [photographing and sharing your ballot], doesn’t necessarily mean it’s OK,” says Sellars. “Virtually every state empowers the secretary of state or the attorney general of the state, as well as local election officials, to take action to prevent activity which would disrupt a polling place”